UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5196

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 versus

ROLANDO MOTA-CAMPOS, a/k/a Rigoberto

Galeno-Moran, a/k/a Alberto Galeno-Moran,

a/k/a Rolando M. Compos, a/k/a Gavino

Barrera-Sala, a/k/a Rigoberto M. Galeno, a/k/a

Rolando Morta Qompos, a/k/a Rigoberto Moran

Galeno, a/k/a Rolando Campos-Morta, a/k/a

Alberto Galeno, a/k/a Gabino Barrera, a/k/a

Rolando Morta Campos,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Newport News. Henry Coke Morgan, Jr.,

Senior District Judge. (4:06-cr-00039-HCM)

Submitted: June 27, 2007 Decided: July 30, 2007

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Michael S. Nachmanoff, Acting Federal Public Defender, Keith Loren

Kimball, Assistant Federal Public Defender, Frances H. Pratt,

Research and Writing Attorney, Norfolk, Virginia, for Appellant.
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Chuck Rosenberg, United States Attorney, Lisa R. McKeel, Assistant

United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
Mota-Campos asserts that this Court has returned to a *

mandatory guideline scheme by reason of its decisions in United

States v. Green, 436 F.3d 449, 457 (4th Cir.) (holding that

sentence within advisory guideline range is presumptively

reasonable), cert. denied, 126 S. Ct. 2309 (2006), and United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). His position

has been rejected by the Supreme Court. Rita v. United States, ___

S. Ct. ___, 2007 WL 1772146 (U.S. June 21, 2007) (No. 06-5754).

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PER CURIAM:

Rolando Mota-Campos, a Mexican citizen, pled guilty to

unlawful reentry by a deported alien following conviction of an

aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2000). In

sentencing him, the district court departed upward from the

advisory guideline range of 70-87 months and imposed a sentence of

174 months imprisonment. Mota-Campos appeals his sentence, arguing

that the sentence is unreasonable because the district court

departed based on inapplicable guidelines, and failed to give

adequate notice or to follow the departure procedures set out in

U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2005). He also

maintains that the district court’s factfinding violated the Sixth

Amendment. No Sixth Amendment error occurred, and we conclude *

that the district court’s decision to depart was reasonable, but we

agree that the district court failed to explain adequately its

reasons for the extent of the departure. We therefore vacate the

sentence and remand for further proceedings.

Mota-Campos’ offense level was 21. With eleven criminal

history points, he was in criminal history category V. His
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recommended advisory guideline range was 70-87 months. His

criminal history score resulted from sentences for: abduction,

three DWI convictions, resisting arrest, and abusive language. He

also received points for committing the instant offense while under

a criminal justice sentence. No points were awarded for: a fine

for trespassing, two suspended sentences for driving without a

license, two convictions for assault and battery [of his wife and

son] where no sentence was imposed because adjudication was

completed after Mota-Campos was in deportation proceedings , and a

ten-day sentence for contempt.

The government moved for an upward departure pursuant to

USSG § 4A1.3, based on the following factors: Mota-Campos had

multiple alcohol-related convictions; he had previously been

deported three times; he had outstanding criminal charges for three

separate assaults in Kings County, New York; he had received

lenient sentences in the past by using multiple aliases which

concealed his criminal history; he had not been deterred from

criminal conduct; and his statements to law enforcement authorities

indicated that he would again reenter the United States illegally.

At the sentencing hearing, the government advised that

the court should structure a departure by using the incremental

approach authorized in United States v. Cash, 983 F.2d 558 (4th

Cir. 1992), and requested a sentence of 120 months. The district

court then determined that Mota-Campos’ criminal history score
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would be higher if he had not lied about his name so often, that

category V was inadequate to protect the public from likely further

criminal conduct on his part, and that the guideline sentence would

be “grossly inadequate.” The court decided that an appropriate

sentence would be twice the guideline maximum, or 174 months’

confinement.

The court further explained its decision in a written

sentencing order, entered November 7, 2006, which cited encouraged

grounds for departure identified in various guidelines and

guideline commentary, i.e., USSG § 2B1.1 (offense level understates

seriousness of crime); § 4A1.3 (adequacy of criminal history); USSG

5K2.17 (public welfare); and USSG § 5K2.21 (dismissed and uncharged

conduct). The court stated that it had departed pursuant to 18

U.S.C.A. § 3553(a)(2) (West 2000 & Supp. 2007), “to (A) reflect the

seriousness of the offense, promote respect for the law, and to

provide punishment for the [offense]; (B) to afford adequate

deterrence to criminal conduct; and (C) to protect the public from

further crimes of the defendant.”

A sentence is reviewed for reasonableness. United

States v. Booker, 543 U.S. 220 (2005); United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). When

there is a departure, the appeals court must consider “whether the

sentencing court acted reasonably both with respect to its decision

to impose such a sentence and with respect to the extent of the
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divergence from the sentencing range.” Id. A departure pursuant

to § 4A1.3 is encouraged, provided that the criminal history

category does not account adequately for the defendant’s past

criminal conduct or the likelihood that he will commit other

crimes. United States v. Dixon, 318 F.3d 585, 588 (4th Cir. 2003).

Here, the government requested a departure under § 4A1.3,

and the district court determined that a departure was warranted

because (1) Mota-Campos had received relatively lenient treatment

in different courts that were likely unaware of his other offenses

because of his extensive use of aliases, (2) his attitude indicated

a high probability that he would return to the United States if

deported and would commit additional crimes, and (3) he

consequently posed a danger to the public. We conclude that these

findings adequately state the court’s reasons for departing and are

proper factors for consideration. Hernandez-Villanueva, 473 F.3d

at 123. Thus, the district court’s decision to depart was

reasonable. United States v. Dalton, 477 F.3d 195, 198-99 (4th

Cir. 2007). 

In its written order explaining the departure, the

district court cited other guidelines as well as § 4A1.3.

Mota-Campos contends that the court erred in relying on these

guidelines without giving him notice. When the court departs from

the advisory guideline range post-Booker, the defendant is still

entitled to notice of the court’s intention to depart and the
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grounds for departure before sentencing. Fed. R. Crim. P. 32(h);

United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).

However, a failure to provide notice may be harmless error if the

defendant is not prejudiced. Davenport, 445 F.3d at 371. We are

satisfied that Mota-Campos was not prejudiced because the district

court cited the additional guidelines only for general principles

which are echoed in § 4A1.3 or in § 3553(a)(2). Thus, any error

was harmless. See Davenport, 445 F.3d at 371.

However, a departure from category V to category VI would

have produced a guideline range of 77-96 months. The court in

effect departed above category VI by imposing a sentence of 174

months. The court did not follow the “incremental approach”

mandated by § 4A1.3(a)(4)(B) and our precedents for departures

above category VI. Dalton, 477 F.3d at 199; United States v. Cash,

983 F.2d 558, 561 (4th Cir. 1992); United States v. Rusher, 966

F.2d 868, 884 (4th Cir. 1992). The court imposed a sentence that

was twice the top of the advisory guideline range without providing

either the incremental analysis required by § 4A1.3 or the

“extensive justification” required for “dramatic departures.”

Dalton, 477 F.3d at 199 (citing United States v. Hampton, 441 F.3d

284, 288 (4th Cir. 2006)). The court merely stated orally that it

believed 174 months to be an appropriate sentence and, in its

written order, failed to explain how it determined the extent of

the departure. 
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Accordingly, we vacate the sentence and remand for

resentencing. On remand, the district court should explain why

category VI is inadequate and “move incrementally down the

sentencing table to the next higher offense level until it finds a

guideline range appropriate to the case.” USSG § 4A1.3(a)(4)(B);

see also Dalton, 477 F.3d at 200 n.3. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

VACATED AND REMANDED